9911796707
TMI Blog2024 (3) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions and circumstances of the case, which is liable to be annulled. (3) The Ld. CIT(A) was not justified in not considering the provision of section 50C(2) of the Income-tax Act, 1961, i.e. Valuation Rules. (4) That on the facts and circumstances of the case, the Ld. CIT(A) erred in sustaining charging of interest u/s 234A and 234B which is unjustified. (5) The Ld. CIT(A) was not justified in sustaining the levy of penalty u/s 271(1)(c). 2. The background facts leading to present appeal are such that in the case of assessee-individual, the AO received an information that the assessee sold a land on 06.09.2010 for Rs. 35,00,000/-, having stamps valuation of Rs. 48,05,000/- and earned capital gain. Accordingly, to assess the same, the AO issued notice u/s 148. In response, the assessee filed return declaring a total income of Rs. Nil. The AO, however, completed assessment after making an addition of Rs. 46,13,227/- on account of long-term capital gain, calculated as under: Full value of consideration 48,05,000 Less: Indexed cost of acquisition 1,91,773 Long-term capital gain 46,13,227 Aggrieved, the assessee went in first-appeal but did succeed. Now, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the assessee should be given the benefit of 1st proviso and if that is done, the full value of consideration adopted by lower-authorities at Rs. 48,05,000/- is wrong; the same must be held to be Rs. 35,00,000/- only. 6. Ld. DR for revenue strongly opposed the above submission of Ld. AR. He invited our attention to the 2nd Proviso to section 50C(1) which prescribes thus: "Provided further that the first proviso shall apply only in a case where the amount of consideration, or a part thereof, has been received by way of an account payee cheque or account payee bank draft or by use of electronic clearing system through a bank account, on or before the date of the agreement for transfer:" Ld. DR submitted that the aforesaid 2nd proviso prescribes a rider that the 1st proviso shall apply only in a case where the amount of consideration or a part thereof has been received by way of an account payee cheque or account payee bank draft or by use of electronic clearing system. However, the details of payments noted on Page 2 of sale-agreement entered by assessee clearly reveals that the assessee received a sum of Rs. 6,00,000/- in cash, Rs. 10,00,000/- through cheque dated 09.10.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rustrate the very object of prescription of 2nd proviso and give an unfettered opportunity to any person to make an agreement specifying receipt of a post-dated cheque and thereby claim benefit of 1st proviso. Ld. DR submitted that any such argument of assessee/AR should not be encouraged and it must be rejected. 9. We have considered rival submissions of both sides, perused the documents placed before us and also carefully analysed the verdict of 1st Proviso and 2nd Proviso to section 50C(1). At first, we note from submission of Ld. AR that the cheque of Rs. 10,00,000/- received by assessee from buyer was 'post-dated' 09.10.2006. Then, from bank statement filed in Paper-Book, we find that the cheque was credited in assessee's bank a/c on 11.10.2006. There is no quarrel with the proposition held in the cases quoted by Ld. AR that if the cheque is ultimately encashed, it could relate back to the date on which it was delivered by debtor to creditor. But the case of assessee is absolutely different and distinguishable. In assessee's case, as accepted by Ld. AR for assessee, the cheque itself was 'post-dated' 09.10.2006 whereas the sale-agreement was made on 29.09.2006. Further, the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent submissions. We present their submissions as well as our adjudication in next paras. 11. The first plank of litigation is such that the assessee purchased new land in the name of son which is not acceptable to authorities. In this regard, Ld. AR for assessee relied upon certain decisions where investment was made by assessee from his own funds but the new property is acquired/ registered in the name of assessee's son or wife and still the courts have allowed exemption. The decisions relied by Ld. AR are: (a) PCIT Vs. Balmukund Meena ITA No. 188/2016 (MP High Court) (b) CIT Vs. Kamal Wahal 351 ITR 4 (2013) (Delhi High Court) (c) CIT Vs. V. Natarajan 154 Taxman 399 (Madras High Court) (d) Bhagwan Swaroop Pathak Vs. ITO, ITA No. 2754/Del/2019 (e) Mukkamala Srihari Rao Vs. ACIT 142 Taxman.com 479 (Ranchi) Ld. AR submitted that the first decision in above list i.e. PCIT Vs. Balmukund Meena ITA No. 188/2016 is a decision of Hon'ble jurisdictional High Court of Madhya Pradesh in which it has been clearly held that the land purchased in the name of son is eligible for exemption u/s 54B. Ld. AR submitted that the decision is binding upon ITAT, Indore and involve identical fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be said to be entitled for exemption u/s 54B even if the registration has been taken in the name of son. At this stage, we may also mention that the Hon'ble Supreme Court has dismissed the assessee's SLP against the decision of Hon'ble Punjab & Haryana High Court by passing a one line summary order; therefore as per settled judicial view such dismissal cannot be treated as pronouncement of final law by the Hon'ble Supreme Court. The effect of dismissal in this manner can only have the effect that the decision of High Court remains intact and did not get disturbed. 12. The second plank of litigation is whether the assessee having made investment on 20.06.2007 before the registration of sale-deed on 06.09.2010 is eligible for exemption. In this regard, Ld. AR made several contentions as follows : (i) Although the assessee made investment before registration of sale-deed on 06.09.2010 yet it was after sale-agreement dated 29.09.2006, (ii) The assessee made investment out of the moneys received from buyer under sale-agreement, (iii) Once the assessee has received sale-consideration from buyer, there was no purpose of holding such moneys till registration of sale-deed or investing su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
